JK 526 
1876 



B7 Residential Question 



Copy 1 



A LEGAL "VIEW 



OF THE 



PRESIDENTIAL CONFLICT 

OF 1876. 



7^ 

By J. r P. BISHOP, 

N 

OP THE CLEVELAND BAR. 




Concurred in by the following Distinguished 
Lawyers and Jurists : 

Hon. S. J. ANDREWS, Hon. SAM'L B. PRENTISS, 

Hon. HORACE FOOTE, Hon. SAM'L WILLIAMSON, 
Hon. JAMES MASON, Hon. CHAS. E. PENNEWELL. 



Cleveland Herald Print. 




JK Silo 

.Si 

PREFATORY NOTE. 



The " Note of Explanation " published in connection with the " Legal 
View of the Presidential Conflict of 1876/' in the following pages, is all 
the apology I wish to ofter in giving, in this more permanent form, to the 
public the " Legal View " above referred to,' rather than leave it to the 
daily press alone. I do this more especially because of the endorsement 
which it has received from members of the bar and jurists of the highest 
legal position and reputation. The " Legal View " was published originally 
in the daily papers — Herald and Leader, of Cleveland, of December 22d — 
and I give notices of it as contained in those papers, not only to show the 
opinions of the press, but the drift of public and judicial opinion on the 
subject. * 

I have been asked why I did not go into the discussion of the effect 
of one of the candidates for elector of a state who received the majority 
vote being disqualified. That is not necessarily connected with this subject, 
and to incorporate it here would extend the article to too great length. 

J. P. BISHOP. 



[From the Cleveland Heeald.] 



A LEGAL VIEW OF THE CASE. 



One of the consequences of the present 
political complication will be a more widely 
diffused knowledge of the Constitutional 
provisions reguating the process of Presi- 
dent making. These have been presented 
in every possible light and with every possi* 
ble variety of construction and comment. 

An important contribution to the legal 
literature of the case will be found in an- 
other part of this issue in the form of a pa- 
per by Hon. J. P. Bishop, of this city, which 
assumes the form of a legal opinion on the 
Constitutional questions involved. Judge 
Bishop himself is well known as a former 
member of the Court of Common Pleas and 
District Court, who, whilst on the Bench 
and since his retirement, gave much study 
to Constitutional questions. When the 
Dresent political complications arose he de- 
voted himself to a thorough examination of 
the Constitutional and lesal points involved, 
the result being the paper we print to-day. 
That paper is approved and its most impor- 
tant features indorsed in a communication 
to the author, published with the paper, 
from six gentlemen widely known for 
their legal abilities, sound judg- 
ment, and conservative views, and 
who have for many years been 
distinguished ornaments of the Bench and 
Bar. Hon. Sherlock J. Andrews was a 
member of Congress, It ading member of the 
Bar of this State, Judge of the Superior 
Court at the time the present Constitution of 
Ohio went into operation, was a member of 
the Convention that framed the present 
Constitution, and also of the late Constitu- 
tional Convention, in which he filled the 
office of Chairman of the Judiciary Com- 



mittee — the highest position in the Conven- 
tion. Hon. Horace Foote was for twenty 
years a leading Judge of the District Court, 
and esteemed one of the most profound of 
lawyers. Hon. James Mason has for many 
years stood in the front rank of the lawyers 
of the State. Judge S. B. Prentiss was re- 
cently elected to a third term as Judge of 
this District. Hon. Samuel Williamson 
was State Senator for two terms and enjoys 
a high reputation for sound legal ability. 
Hon. C. E. Pennewell, who has recently be- 
come a citizen of Cleveland, was a leading 
member of the Huron County Bar, and was 
Judge of that District Court. We give 
these facts to show the character for leaal 
knowledge of the gentlemen with whose ap- 
proval the paper appears. 

The position taken by Judge Bishop and 
his endorsers is materially the same we have 
assumed in these columns, and that the Con- 
stitution is the only guide, and that no 
other course can be taken, without danger 
of violating the spirit, if not the letter, of 
the Constitution, than the opening of the 
certificates by the President of the Senate, 
and the declaration of the result of the 
votes actually counted by him, or by him 
handed over to be counted. 

Briefly stated, Judge Bishop's points are, 
that the Constitution gives the State Legis- 
latures power to prescribe the manner of 
appointing Electors, and nothing else. The 
State Legislatures cannot go beyond this 
power; they cannot evade its responsibility. 
Congress cannot interfere with it. The 
President of the Senate is the Constitutional 
custodian of the regular and authorized 
Electoral votes. He, and he only, can open 



the certificates. It is tor him to determine 
which of the lists of votes are regular and 
authorized, and those he produces as such 
are to be counted, and none other. As f®r 
the count of the votes, the Constitution does 
not provide for the counting to be done by 
the House alone, or by the Senate alone, or 
by the two conjointly, or by a com- 
mittee appointed by one or both Houses; 
nor does it sav whether the 
count shall take place in the Senate or in 
the House.. The object of the count in the 
presence of both Houses is simply to pre- 
serve the evidence of the number of Elec- 
toral votes each candidate received. The 
President of the Senate may announce the 
vote of each State as he opens the certificate. 
A summing up ot the votes so announced 
wiH show which candidates have the high- 
est votes for President and Vice President, 
and the announcement of that summing up 
ends the matter. No formal declaration as 
to who are elected President and Vice Pres- 
ident is required by the Constitution, and 
none is necessary. 

Judge Bishop holds that the Constitutional 
provision is self-executing and was not in- 
tended to be subjected to anv law, rule, or 
regulation of Congress, or of either branch. 
The language of the existing law of Con - 
gress shows this by referring to the language 
of the Constitution for the manner in which 
its intentions are to be carried into execu- 
tion. 

In dealing with the cases of Oregon and 
the disputed Southern States, Judge Bishop 
points out the great difference between 
tnem. The Constitution gave to the Legis- 
latures complete control of the manner in 
which the Electors are to be appointed. 
The Southern States in question pro- 
vided they shall be elected by a 
popular vote revised and corrected by Re- 
turning Boards or Boards of Canvassers. 
The Oregon Legislature provided they shall 



be elected by a majority vote of the people, 
without the intervention of a Board of Can- 
vassers having power to revise and correct. 
The Electors declared by the Returning 
Boards of the Southern States in question 
to be elected are the true Electors, whether 
they receive the Governor's certificate or 
not. The State has exhausted its power in 
the case when the Boards declare the result. 
Congress cannot go behind that declaration. 
The Oregon Electors receiving the majority 
vote are beyond the control of the State 
when the result of that vote has been 
officially declared. The law of Congress 
requires the Governors to issue certificates 
to such Electors, but the refusal to do so does 
not affect their position. The State has a 
right to representation by its full vote, and 
the Elector has a vested right to the office. 
Neither can be deprived of such right by 
the Governor's refusal to comply with the 
law. " The provisions of the Federal Con- 
stitution cannot be nullified by any such 
" means or evasion, nor the will of the 
" people of the State be tkereby over- 
turned. " 



[From the Cleveland Leader.] 
On the seventh page of the Leader to day 
will be found a comprehensive and able pa- 
per by Judge J. P. Bishop on the leeal as- 
pects of the present controversy in regard to 
the Presidential election. The letter is en- 
dorsed and its publication requested by a 
number of the ablest lawyers ot the Cleve- 
land bar, among whom are Judge S. J. An- 
drews and Judge Prentiss, who both stand 
at the head of the legal profession in Ohio. 
The citation of authorities is veiy strong, 
and we have not seen elsewhere as formida- 
ble a statement of the Republican view of the 
case. The question discussed is at this time 
of overshadowing importance, and Judge 
Bishop's article will be accepted as an im- 
portant and timely contribution to the debate 



PRESIDENTIAL QUESTION. 



LEGAL VIEW OF THE PRESIDENTIAL CONFLICT OF 18T6, 



BY J. P. BISHOP, OF THE CLEVELAND BAR. 



NOTE OF EXPLANATION. 

1 originally prepared the following paper 
itit'ed "Legal View of the Presidential Con- 
liet of 1876" without intending it for publi- 
cation, but as the conclusion to which mv 
own convictions had led me, after a careful 
investigation of the subject, and for the pur- 
pose of submitting: the same to some members 
of the legal profession, etc. , to get the ex- 
pression of their opimcms upon it. The result 
of this has been the following communication 
and the publication of the "Legal View. ' ' 
J. P. Bishop. 



Cleveland, Dec. 20. 
Hon. J. P. Bishop : 

Dear Sir : W e have read and considered 
your "Leeal View of the Presidential Conflict 
o. 1876, " and concur generally with you m 
the positions taken, and in the conclusions at 
which you arrive. 

in view of the great importance of the ques- 
tions,and to aid in their consideration and dis- 
cussion by the public, we recommend that you 
permit the argument and opinion to be pub- 
lished. Respectfully, 

S. J. Andrews, 
H. Foots, 
James Mason, 
Saitl B. Prentiss, 
Sam'l Williamson, 
Chas. E. Pennewell. 



Presidential Conflict 
1876. 

over the Presidential 
it now stands (Dec, 



l*e«*al View oi tlie 
of 

Having reflected 
election question as 

187u). T give the result of my reflections, 
which, though it may not satisfy others, is 
sever tireless satisfactory to myself. 
constitutional provisions bearing on 
the question. 

These are only two. 

Article IT, section 1 of the Constitution 
of the United States provides that "Each 



Slate shall appoint in such manner as the 
Legislature thereof may direct, a number of 
Electors equal to the whole number of Sena- 
tors and Representatives to which the State 
mav be entitled in the Congress." 

Article XII of Amendments provides that 
the Electors "Shall name in their ballots the 
person voted for as President and in distinct 
ballots the person voted for as Vice Presi- 
dent. And they shall make distinct lists of 
all persons voted for as President and of 
all persons voted for as Vice President and 
of the number of votes lor each, which list 
they shall sign and certify and transmit, 
sealed, to the seat of Government of the 
United States, directed to the President of 
the Senate. The President of the Senate 
shall, in ihe presence of the Senate and 
House of Representatives, open all the cer- 
tificates and the votes shall then be 
counted; the person having the greatest 
number of votes tor President, shall be the 
President, if such number be a majority of 
the whole number of Electors appointed." 
The provision is the same as to Vice Presi- 
dent. 

My firm and decided conviction is as fol- 
lows: 

i. — as to election op electors. 
The Legislature of each State may pre- 
scribe this. That is the extent of the State 
legislative power over the subject. Any- 
thing further may be a good rule to observe, 
a goodformula to pursue, but it is not bind- 
ing; it is not imperative. Apply this to the 
present emergency. The election took 
place under the laws of the States as they 
formerly existed and now exist. The first 
question arises, How i»re you to know who 
are elected? Of this I will remark before I 
close, premising that as applied to Oregon 
the certificate of the Governor as to who 



are Electors in the face of the facts, and 
especially in face of the fact that the Gov- 
ernor is not the returning officer or canvass- 
ing board, is nugatory. 

II. — AS TO RECEIVING BY THE VICE PRESI- 
DENT AND OPENING THE CERTIFICATES 
AND COUNTING THE VOTES. 

Under ordinary circumstances there could 
be no difficulty, and the two Houses may 
adoot any rule they see fit. But extraor- 
dinary circumstances require extraordinary 
measures. As during the time of the "great 
Rebellion" the Government had to make its 
own precedents, the emergency then never 
having before arisen, so now in this 
emergency there is no precedent. 

There are two sets of E ectors in one or 
more States; Oregon, for example. What 
list shall the Vice President receive, pro- 
duce, and open in presence of the Senate 
and House of Representatives? Certainly 
only the regular lists and returns which 
come to him. The returns coming to him 
from seli-appointed Electors, or Electors ap- 
pointed without authority of law, cannot be 
recognized- otherwise one hundred irregu- 
lar or unauthorized l'sts might as well be 
produced and opened as one irregular or 
unauthorized list of Electors with the votes 
given by them. 

The President of the Senate then decides 
that he can and will receive only the regular 
returns and <ists coming to him, and these 
he produces and opens, as the Constitution 
provides, in presence of the Senate and 
House of Representatives. 

III. — COUNTING THE VOTES. 

The next and final step under the Consti- 
tution is: "And the votes shall then be count- 
ed." Who shall count them? Certainly 
not the House alone. Not the Senate alone. 
Not the two combined. The Constitution 
does not prescribe this. Not a committee 
elected or appointed by one or both Houses. 
The Constitution does not so provide. It 
may then be done in any manner and bv 
any persons so as to preserve the evidence of 
the number of votes each candidate has re- 
ceived. It is not needed, so far as the Con- 
stitution provides, that the Senate shall go 
to the House to count. It may be done in 
either the Senate Chamber or House of Rep- 
resentatives. 

To obviate objections the Senate can go 
to the House; but the President of the Sen 
ate has the custody of the lists and returns 
of the Electoral votes. i& opens them. In 
opening he can call to his assistance whom 
he pleases. As each list or return is opened 
it may be ascertained what the number of 
votes is and for whom given, and an an- 
nouncement thereof may be made by the 



Vice President as each State is called and 
the certificates are opened. This being done 
the final count is made by reviewing and 
adding up the votes of each State as already 
ascertained and announced. 

jSfo declaration is needed as to who is 
elected President or Vice President. The 
Constitution fixes and prescribes this, to-^ u,: 
the one having the "greatest number of 
votes for President shall be the President," 
etc., "if such number be a majority of the 
whole number of Electors appointed " The 
number of Electora 1 votes received by eac'; 
candidate being thus ascertained may be ~~, 
nounced by the President of the Seaat^. 
who, if not made by the Constitution, ~cU- 
tainly is by usage under it, the presiding 
officer at the meeting of the two Houses to 
witness the count of the Electoral votes. 
Even this announcement is not required. 
All that is in fact needed is to preserve the 
evidence of the count and the number of 
Electoral votes for each person voted for, 
either for President or Vice President, and 
the Constitution itself declares the result. 
JSTotning further then remains to be done 
but for the President-elect to take the Con- 
stitutional Oath and his title to the office is 
complete. 

IV. — THIS CONSTITUTIONAL PROVISION is 
SELF-OPERATING. 

Thus it will be seen that the Constitutioe 
is self executing and was intended to be so 
bv the framers of it, and not to be subject 
to any law, rules, or regulations of Con- 
gress, or of either branch of Congress. 

To show that the Constitution is self- 
operating as to counting and declaring the 
result of the Electoral votes, it is ooly neces- 
sary to refer to section 142 of the act enti 
tied "Presidential Election" (U. S. Rev 
Stats., page 22). That section is as 
follows: "Congress shall be in session 
on the second Wednesday m February 
succeeding every meeting of the Electors, 
and the certificates, or so many of them as 
have been received, shall then be opened, 
the votes counted, and the persons to fill 
the offices of President and Vice President 
ascertained and declared agreeable to the 
Constitution." 

If anything is clear, it is clearly certain 
that this provision refers the whole matter 
of ascertaining and declaring the result of 
the Electoral vote back to the constitutional 
provision, and makes it self-opeiating and 
self -executing. In fact, if Congress should, 
or if a State should, in any way, attempt to 
restrict, modify, or in any way vary this 
constitutional provision by any law, rule, 
or regulation, such law, rule, or regulation 
would be unconstitutional and void. 

This is snown in the decision in the Prigg 



ca&e, 16 Peters, 607. On page 626 in that 
case, Chief Justice Taney, in speaking of 
the master's right to reclaim and take his 
slave wherever he could find him, savs: 
"The right of the master to reclaim his slave 
being given by the Constitution of the United 
S* ^es, neither Congress nor any State Leg- 
islature an. by any law or regulation impair 
or testrict it." 

V. — FURTHER AS TO ELECTION OP ELECTORS. 

I repeat, the Federal Constitution gives to 

^ch State Legislature the right to prescribe 

; mode of appointing the Electors to 

hich each State severally is entitled; this 

l.eing done, neither Congress nor a State 

Legislature can further interfere. 

VI. — HOW ARE WE TO KNOW WHO ARE ELECT- 
ED OR APPOINTED ELECTORS? 

This applies more especially to Oregon. 
As I understand the laws of Oregon they 
fully provide for the election by a majority 
vote. This being done according: to the 
law of the State, "the right of the Elector is 
complete under the Constitutiou of the 
United States. 

The law of Congress (Rev. Stats., p. 21, 
sec. 136) requires theGo/ernors of the States 
respectively to furnish certificates to the 
Electors containing the names of the Electors, 
on or before the first Wednesday in Decem- 
ber, when toey are to meet. Supposing the 
laws of Oregon require substantially the 
same thing, these laws are directory merely, 
and the giving or withholding such certifi- 
cates can neither validate nor invalidate. 
The Federal Constitution only gives the 
right to each State to appoint Electors in 
sucti manner as the State Legislature snail 
provide. The Legislature having provided 
for this by an election by the people, and 



that being done and ascertained, the State 
hss no further power over tne subject; and 
while the Governors or Secretary of State's 
certificate of election is convenient as evi- 
dence of the election, ye*- neither of them 
is absolutely essential, the fact otherwise 
appearing or being ascertained . 

If the Governor were the returning board 
and had according to law eanvassed the vote 
cast by the voters of the State and certified 
to the number of votes, the case would be 
entirely different. In this case, however, 
the law as to the Governor's certificate is 
merely directory, and when such certificate 
is refused on general principles of law, it 
cannot deprive the State of its vote in the 
Electoral College nor the Elector of his of 
fice. 

VII. — LOUISIANA, FLORIDA, AND OREGON— 
^CONCLUSION. 

The Returning Boards of Louisiana and 
Florida canvassed the votes of their re- 
spective States and made returns thereof 
according to the laws of their respective 
States, and the Governors issued certificates 
to the Electors accordingly. In Oregon 
the required canvass and return were 
made, which showed that certain 
Electors had been elected by a large ma- 
jority. This being so, the State has a right 
to be represented in the Electoral College, 
and the Elector has a vested right to the of- 
fice, and neither the State nor the Elector 
can be deprived of such right by the refusal 
of the Governor or other officer to furnish 
to the Elector a certificate of his election. 
The provisions of the Federal Constitution 
cannot be nullified by any such means or 
evasion, nor the will of the people of a State 
be thereby overturned. 



LIBRARY OF CONGRESS 



007 276 758 5 



